State Sen. Gary LeBeau, a Democrat from East Hartford, introduced a bill this year that most folks assumed would be dead by now — not so much on the merits of the case, but because it is the type of legislation that makes politicians sigh, and provokes public hearings and raises complex constitutional questions and prompts quiet whispers from interested parties who would prefer the bill just go away.
But here it is, mid-April, and as of this writing, the bill, slightly amended, is alive and well and floating around the state Senate. The Judiciary Committee didn’t kill it. The parting of the Red Sea wasn’t this much of a miracle.
LeBeau, a retired teacher, wants to offer blanket protection to students from thin-skinned school administrators for any electronic communication written by students outside of school — except, of course, a message that might be interpreted as a “threat.”
The legislation was prompted by a childish bit of blog writing from a Burlington High School student in 2007, which referred to certain school administrators as “douche bags” — a term of art normally reserved for editors who shorten columns.
The student was disciplined by school administrators even more childish than the student — and the subsequent First Amendment case staggered up to the 2nd U.S. Circuit Court of Appeals, which affirmed that school officials are free to act in a manner similar to Afghani war lords when the conduct being squashed “would foreseeably create a risk of substantial disruption within the school environment …”
Of course, calling school administrators names on a personal blog, off school grounds, is less disruptive than loud chewing of gum in an algebra class. For a legal standard to have as its foundation the creaky vocabulary of “foreseeably” and “risk” and “substantial” and “disruption” in the same sentence, is a circumstance that cries out for some legislative repair.
The 2nd Circuit decision was mediocre, but, unfortunately, not beyond tortured precedent. It follows in what is admittedly a long and undistinguished history of American jurisprudence on matters of student First Amendment rights.
What is often considered the gold standard for allowing school bureaucrats to act like petty tyrants came in the 1969 U.S. Supreme Court case, “Tinker v. Des Moines Independent Community School,” in which the justices held their collective legal noses and determined that students were entitled to shabby free-speech rights, which could be stomped on if the speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
That vague piece of lousy legal discourse might be enough in and of itself to doom LeBeau’s mild bit of legislative cleanup, although the effort would at least establish legislative intent that would help pretty up the next court case in Connecticut involving student free speech.
If there is any comfort in all this nonsense, it may be that teachers are also often caught up in the reality that the constitution stops at the school house door. Last year, a federal judge ruled that public school teachers in New York City could not wear political campaign buttons to work, thus dooming the Obama campaign to hours of oblivion in the temples of education.
The minefield that is freedom of expression and “disruption” will never be precisely clarified in the murky confines of public education. Just last month, an eighth-grader in Lakeland, Fla., was suspended after he, with malice and premeditation, passed gas on his school bus. As the county school officials explained, there is no rule against flatulence, but the boy created a “disturbance.”
That one probably won’t make it to the Supreme Court. Please.
Laurence D. Cohen is a freelance writer.
